Marriage of Davis

Filed 7/20/15

IN THE SUPREME COURT OF CALIFORNIA

)

In re Marriage of SHERYL JONES )

DAVIS and KEITH XAVIER DAVIS. )

____________________________________)

)

SHERYL JONES DAVIS, )

) S215050

Respondent, )

) Ct.App. 1/1 A136858

v. )

) Alameda County

KEITH XAVIER DAVIS, ) Super. Ct. No. RF08428441

)

Appellant. )

____________________________________)

In a marital dissolution proceeding, a court determines the division of

property between the spouses by first characterizing the parties‘ property as

community property or separate property. (In re Marriage of Valli (2014) 58

Cal.4th 1396, 1399.) Family Code section 760 provides that all property acquired

by the spouses during the marriage is community property ―[e]xcept as otherwise

provided by statute.‖ One such statute is Family Code section 771, subdivision (a)

(section 771(a)), which provides that ―[t]he earnings and accumulations of a

spouse . . . , while living separate and apart from the other spouse, are the separate

property of the spouse.‖ In this case we consider whether a couple may be ―living

separate and apart,‖ for purposes of section 771(a), when they live together in the

same home. We conclude the answer is no. The statute requires the spouses to be

living in separate residences in order for their earnings and accumulations to be

their separate property. Because the Court of Appeal concluded otherwise, we

reverse its judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Keith Xavier Davis (husband) and Sheryl Jones Davis (wife) were married

on June 12, 1993. They have two children, a daughter born in August 1995 and a

son born in November 1999. Wife filed for dissolution on December 30, 2008.

At trial on the issue of the date of their separation, wife described the

couple‘s marriage as turbulent. She testified that they stopped being sexually

intimate after their son was conceived in 1999. They never went on a ―date‖ after

their son was born. The parties disagreed as to when they stopped sharing a

bedroom in their marital home. Husband testified wife moved to another bedroom

in 2001; wife testified this happened in 2004. Their trial testimony indicates that

they both attended the children‘s activities, but traveled to the locations by

separate cars. Wife did her own and the children‘s laundry. Husband did his

laundry. Both parties prepared meals, but wife would not prepare something

different for husband if he was dissatisfied with the meal she made for herself and

the children. The parties took some family vacations together, but also took

separate vacations. In deposition testimony, wife claimed that by 2004 they were

―living entirely separate lives.‖ They spoke about divorce, but stayed together for

the sake of the children.

The parties maintained a joint bank account from the beginning of their

marriage, which wife managed. In 2001, however, husband started his own

business and at some point opened a separate bank account. In 2003, wife

reactivated a separate bank account of her own to manage her business funds and

pay for her personal expenses. Husband contributed $3,200 a month to the

parties‘ joint account from his separate account for the payment of household

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expenses. But both parties were unhappy with each other‘s contributions to the

joint account. In January 2006, husband became employed by Clorox,

substantially increasing his earnings. Wife was frustrated when he did not

increase his financial support to the household.

On June 1, 2006, after the end of their son‘s school year, wife announced to

husband that she was ―through‖ with the marriage. According to her, the ―last

component‖ of their marriage was their finances. On June 1, 2006, wife presented

husband with a financial ledger that itemized their joint household expenses and

their individual expenses. She did this because she wanted the parties to

contribute equally to running the home and funding the children‘s expenses, while

being solely responsible for their own respective personal expenses. Wife

removed husband from her American Express credit account and returned several

of husband‘s credit cards to him. She believed at this point that they were acting

simply as roommates. In July 2006, wife began working full-time, substantially

increasing her earnings. Husband left his job with Clorox in September 2006.

The parties continued to live in the marital home after June 1, 2006. Wife

continued to keep her personal belongings there. She continued to receive mail

and telephone calls there. She continued to cook meals at the home when she was

in town, although she often traveled for her work. She did not change the address

on her driver‘s license. In August 2006, the parties took a family vacation to

Hawaii with their children. However, they subsequently took no out-of-state

vacations with one another. They continued to celebrate special occasions, such as

birthdays and holidays, together as a family as they had previously done. They

both continued to use their joint bank account.

When wife filed the petition for dissolution of the marriage on

December 30, 2008, she listed the date of their separation as June 1, 2006. In his

initial response to wife‘s petition, husband listed the date of separation as

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January 2, 2009 (a few days after wife‘s filing of the petition). Wife did not move

out of the marital home until July 2011. Husband subsequently filed an amended

response listing the date of separation as July 1, 2011.

After trial of the issue, the court found the date of separation to be June 1,

2006. The Court of Appeal affirmed. In relevant part, it disagreed with the

majority decision in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152

(Norviel), which held that physically living apart is ―an indispensable threshold

requirement‖ for separation under section 771(a). (Norviel, supra, at p. 1162.)

We granted review to resolve the apparent conflict in interpretation of the statute.

II. DISCUSSION

A. Contentions of the parties and standard of review

Husband contends that spouses cannot be ―living separate and apart‖ for

purposes of section 771(a) when they continue to share a residence. He urges such

a bright-line rule in order to provide clear guidance to judges and a measure of

predictability to attorneys and litigants. Wife contends that no particular fact,

including place of residence, is determinative. Instead, wife argues that a court

should consider the totality of the circumstances and decide the date of separation

based on conduct by either or both of the spouses evidencing a complete and final

intent to part ways with no plan of resuming the marital relationship, even if at that

time they are still living in the same residence. According to wife, husband‘s

proposed bright-line rule is unworkable and would lead to harsh results. Husband

claims the same thing about wife‘s proposed rule.

Although the date of separation is normally a factual issue to be reviewed

for substantial evidence (In re Marriage of Manfer (2006) 144 Cal.App.4th 925,

930 (Manfer)), resolution of the opposing contentions here depends on statutory

construction of the language of section 771(a), a question of law to which we

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apply a de novo standard of review. (Ceja v. Rudolph & Sletten, Inc. (2013) 56

Cal.4th 1113, 1119.)

B. Statutory construction of section 771(a)

Section 771(a) is part of California‘s statutory community property scheme,

a system of law that ―originated in continental Europe, came to Mexico from

Spain, and became California law through the treaty of 1848.‖ (11 Witkin,

Summary of Cal. Law (10th ed. 2005) Community Property, § 1, p. 529; see In re

Marriage of Bonds (2000) 24 Cal.4th 1, 12.) In interpreting the language of

section 771(a), as with all questions of statutory construction, ―our objective ‗is to

ascertain the intent of the lawmakers so as to effectuate the purpose of the

statute.‘ ‖ (Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at p. 1119.) This

principle is especially important in construing a statute within the community

property scheme because the system itself is a ―creature of statute.‖ (1 Bassett,

Cal. Community Property Law: A Treatise on Marital Property Rights (3d ed.

1994) Origins & Development, § 1:4, p. 8 (Bassett).)

― ‗We begin with the plain language of the statute, affording the words of

the provision their ordinary and usual meaning and viewing them in their statutory

context, because the language employed in the Legislature‘s enactment generally

is the most reliable indicator of legislative intent.‘ [Citations.] The plain meaning

controls if there is no ambiguity in the statutory language. [Citation.] If, however,

‗the statutory language may reasonably be given more than one interpretation,

― ‗ ―courts may consider various extrinsic aids, including the purpose of the

statute, the evils to be remedied, the legislative history, public policy, and the

statutory scheme encompassing the statute.‖ ‘ ‖ ‘ ‖ (People v. Cornett (2012) 53

Cal.4th 1261, 1265.)

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1. The plain meaning of “living separate and apart”

As noted earlier, section 771(a) states that ―[t]he earnings and

accumulations of a spouse . . . , while living separate and apart from the other

spouse, are the separate property of the spouse.‖ (Italics added.)

In considering whether this statute has a plain meaning, we recognize that

―the phrase ‗living separate and apart‘ is a term of art.‖ (1 Kirkland et al., Cal.

Family Law: Practice and Procedure (2d ed. 2014) Characterization — Division

in General, § 20.06[2][a], p. 20-26.) As such, it has been defined in Black‘s Law

Dictionary as spouses ―residing in different places and having no intention of

resuming marital relations‖ (Black‘s Law Dict. (7th ed. 1999) p. 945, col. 2, italics

added) and more recently as spouses ―living away from each other, along with at

least one spouse‘s intent to dissolve the marriage.‖ (Black‘s Law Dict. (10th ed.

2014) p. 1076, col. 2, italics added.) These definitions contemplate both a

physical separation of residence and an accompanying intent to end the marital

relationship. They incorporate an ordinary and common linguistic understanding

of the word ―apart,‖ used as an adverb, as being ―[a]t a distance in place, position,

or time‖ or ―[a]way from‖ and the word ―separate‖ as denoting being ―ke[pt]

apart,‖ ―space[d] apart‖ or ―scatter[ed].‖ (Amer. Heritage Dict. (4th ed. 2000) pp.

82, col. 2, 1587, col. 1; accord, Webster‘s 3d New Internat. Dict. (2002) p. 98, col.

2 [defining ―apart‖ as ―at a ‗ ―distance,‖ ―separate[] in space or time‖].)1

Indeed, both legal usage of the phrase ―living separate and apart‖ and

colloquial understanding of what it means for someone to live ―separate‖ and

1 Although not binding, it can be useful to refer to the dictionary definition of

a word in attempting to ascertain the meaning of statutory language. (Wasatch

Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122; MacKinnon

v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 649.)

6

―apart‖ from someone else do not include persons living together in the same

home. Ordinary usage of the language itself contemplates the parties‘ occupation

of separate residences. Therefore, the statute on its face appears to have a

commonly understood, plain meaning.

Nevertheless, we recognize that the phrase as used in section 771(a) is not

without at least some ambiguity. The phrase ―living separate and apart‖ could less

likely, but still plausibly, be read to mean that the spouses are in effect ―living

separate lives‖ with the requisite intent to end the marital relationship. (See

Webster‘s 3d New Internat. Dict., supra, p. 2069, col. 3 [defining the adjective

―separate‖ as ―not shared with another,‖ ―existing by itself: autonomous,

independent‖ or ―distinct, different‖].) Such an interpretation would not require

separate residences for purposes of section 771(a). Instead, it would focus a

court‘s attention on the spouses‘ independence or autonomy from each other in

their daily living. Under this understanding of the statutory phrase, physical

separation would, as wife contends, be simply one of many factors to consider in

determining the date of a couple‘s separation.

To consider whether the Legislature intended the language of section

771(a) to encompass this less likely, but still possible secondary meaning, we turn

to extrinsic aids — the statute‘s long history, its prior judicial construction, and the

Legislature‘s use of the phrase elsewhere in the Family Code — to consider what

light they may shed on the Legislature‘s intent. We find evidence there bolstering

the ordinary and common meaning of the language as requiring separate

residences along with demonstrated intent to finally end the marital relationship

before a spouse‘s earnings and accumulations are considered that spouse‘s

separate property.

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2. Consideration of extrinsic aids

The language of section 771(a) originated in a predecessor statute that was

enacted 145 years ago in 1870. (Stats. 1870, ch. 161, p. 226, entitled ―An Act to

protect the rights of married women in certain cases‖ — hereafter the 1870 Act.)

In its first section, the 1870 Act provided that ―the earnings of [a] wife‖ were ―not

liable for the debts of [her] husband.‖ (1870 Act, Stats. 1870, ch. 161, § 1,

p. 226.) More significantly for our purposes, in language identical to section

771(a) except for the original text‘s restriction to wives, the 1870 Act provided

that ―[t]he earnings and accumulations of the wife . . . , while the wife is living

separate and apart from her husband, shall be the separate property of the wife.‖

(Id., § 2, p. 226.) Further, the 1870 Act specified that a wife ―living separate and

apart from her husband‖ had ―sole and exclusive control [over] her separate

property,‖ could ―sue and be sued,‖ without joinder of her husband, and could

―avail herself of and be subject to all legal process in all actions, including actions

concerning her real estate.‖ (Id., § 3, p. 226.)

The 1870 Act did not contain a definition of the phrase ―living separate and

apart‖ used in section 2. (Stats. 1870, ch. 161, § 2, p. 226.) However, the

Legislature‘s understanding that the phrase connoted a threshold requirement of

separate residences may be discerned from an additional section of the statute.

Section 4 of the 1870 Act provided a procedure for a wife who was ―living

separate and apart‖ from her husband to sell her real property without joining with

her husband. To do so, the wife was required to record a verified and

acknowledged declaration ―containing a description of such real estate, the name

of her husband, her own place of residence, and [stating] that she is a married

woman, living separate and apart from her husband.‖ (1870 Act, Stats. 1870,

ch. 161, § 4, p. 226, italics added.) The statutory requirement that the wife state in

a declaration ―her own‖ place of residence that is ―separate and apart from her

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husband‖ strongly suggests that the 1870 Act was directed at a situation where the

spouses had physically separated and the wife in fact had ―her own‖ residence. It

is some indication that the 1870 Legislature had in mind what we have described

as the common meaning of the language when it first adopted it.

In this regard, we find it additionally helpful to recall the historical context

of the 1870 Act. At that time, married women had very limited power over their

property. In the absence of a binding premarital agreement, the husband had the

absolute right of ―management and control‖ of the community property of the

marriage, including the power of sale of assets. (Stats. 1850, ch. 103, §§ 9, 14,

pp. 254-255.) Under the original 1850 statute defining spousal property rights, the

―rents and profits of the separate property‖ of both husband and wife were deemed

community property and were, therefore, under the exclusive control of the

husband. (Id., § 9, p. 254.) In addition, the husband had the ―right of management

and control‖ of the wife‘s separate property ―during the continuance of the

marriage.‖ (Id., § 6, p. 254.) Her protection against her husband‘s inappropriate

sale of her separate property ―during the continuance of the marriage‖ lay in a

procedural requirement that the sale or encumbrance must be in an instrument in

writing signed by both husband and wife, and her protection against her husband‘s

general mismanagement of her separate property during the marriage lay in an

application to the court for the appointment of a trustee to act on her behalf. (Id.,

§§ 6, 8, p. 254.)

Between 1850 and 1870, the Legislature recognized a few circumstances

under which a married woman could have some control over her separate

property. By legislation in 1852, a married woman was given authority to run a

business in her own name under limited circumstances as a ―sole trader‖ and under

such circumstances, could retain the earnings of such a business as her separate

property; they were not subject to the debts of her husband and she had the

9

authority to sue her debtors. (See Bassett, supra, § 1:3, at pp. 6-7.) By legislation

in 1853, if the terms of an instrument bequeathing, devising or gifting property to

the wife provided that the rents and profits were to ―be applied to her sole and

separate use,‖ the wife could manage and dispose of such rents and profits. (Stats.

1853, ch. 116, § 1, p. 165.) Legislation adopted in 1855 gave a married woman

whose husband was absent from the state for a year the right to convey her

separate property real estate (Stats. 1855, ch. 17, § 1, p. 12), but apparently not any

other property left in her possession. (See Prager, The Persistence of Separate

Property Concepts in California’s Community Property System, 1849-1975 (1976)

24 UCLA L.Rev. 1, 39-41 (Prager); Stats. 1852, ch. 42, p. 101.)

Nevertheless, under the statutory scheme in effect in 1870, until entry of a

decree of dissolution of the marriage (Stats. 1850, ch. 103, § 12, p. 255 [requiring

a division of a couple‘s community property in the decree of dissolution]), it

appears that a woman who was either involved in divorce proceedings or whose

husband had deserted or otherwise left her, and who did not have separate property

coming within one of the statutory provisions giving her control over it, would

have no right of access to the financial sustenance needed to meet the expenses of

daily life on her own. Commentators have observed that the law‘s restrictive

provisions at this time were to some extent inconsistent with traditional principles

of community property law — principles that actually afforded more legal

protection to women than did the common law principles that seem to have

filtered into the California system. (See Prager, supra, 24 UCLA L.Rev. at pp. 34-

46; see also Cammack, Marital Property in California and Indonesia: Community

Property and Harta Bersama (2007) 64 Wash. & Lee L.Rev 1417, 1431-1433;

Schuele, Community Property Law and the Politics of Married Women’s Rights in

Nineteenth Century California (1994) 7 W. Legal His. 245, 262-264; Bassett,

supra, § 1:3, at pp. 7-8.)

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When read as a whole and in this context, it seems evident that the 1870

Act was intended to afford married women some additional protection from the

rigors of the law generally denying them control over their earnings and separate

property. Under the authority of the 1870 Act, a wife whose husband was not

physically living with her could undertake to support herself in her ―own‖

residence. Unlike other married women, she could retain her earnings and

accumulations as her separate property to maintain her separate residence. She

was given the right to control and dispose of her separate property. She could sue

and be sued without the joinder of her husband. Nothing in the 1870 Act indicates

a different intent — to characterize a wife‘s earnings and accumulations as her

separate property while she was still physically living with her husband in the

marital home so long as she and her husband were sufficiently leading ―separate

lives.‖ To the contrary, the 1870 Act should be understood as a limited exception

to the general rule of that time that the husband had full management and control

over the marital and separate assets for the duration of the marriage. It appears the

Legislature was concerned only with the special and limited circumstance of a

wife who was living physically separate from her husband. Such a wife was likely

to be incurring separate expenses associated with her separate residence and could

be anticipated to need the authority to separately maintain, control and manage

such property. In such a situation, the 1870 Legislature determined an exception

to the normal community property characterization of earnings and accumulations

acquired during marriage and husband‘s control was appropriate.

When the Legislature adopted the Civil Code in 1872, it enacted a version

of section 2 of the 1870 Act as Civil Code section 169 (former section 169). As

enacted in 1872, former section 169 provided that ―[t]he earnings and

accumulations of the wife . . . , while she is living separate from her husband, are

the separate property of the wife.‖ (Civ. Code, § 169, as adopted 1872.) Again,

11

nothing suggests that the 1872 Legislature contemplated that anything other than

separate residences would qualify as ―living separate,‖ i.e., that it intended the

language to be construed differently from its common and ordinary meaning. In

fact, the Legislature enacted at the same time section 5 of the Civil Code, which

states that ―[t]he provisions of this Code, so far as they are substantially the same

as existing statutes or the common law, must be construed as continuations

thereof, and not as new enactments.‖ Because former section 169 was

substantially the same as section 2 of the 1870 Act, Civil Code section 5 directs

that it be interpreted as continuing in effect the former law.

Moreover, it might reasonably be suggested that the lack of a statutory

definition of the phrase is some indication itself that the Legislature intended the

ordinary meaning to apply. Otherwise, the Legislature would likely have provided

a specialized definition of the term. It did not.

And indeed, with respect to the language now found in section 771(a), from

the earliest cases on, the issue presented regarding the interpretation of the statute

was not whether separate places of residence were a prerequisite for application of

the law, but rather whether separate residences sufficed. That question was

answered in the negative.

For example, in 1874, this court held that the 1870 Act did not apply when

the evidence showed that the wife was only temporarily physically separated from

her husband. We concluded that for the wife to be ― ‗living separate and apart‘ ‖

within the meaning of the statute ―[t]here must have been an abandonment on the

part of the husband or wife, or a separation which was intended to be final.‖

(Tobin v. Galvin (1874) 49 Cal. 34, 36-37.)

On the other hand, a husband and wife were living separate and apart

within the meaning of former section 169 where the husband left his wife, lived in

a separate town, and determined during his absence that he would never resume

12

marital relations with his wife, while his wife and children continued to live in the

marital home, where the wife kept boarders and did other work to support herself

and the children. (Loring v. Stuart (1889) 79 Cal. 200, 201-202; see Tagus Ranch

Co. v. First Nat. Bk. (1935) 7 Cal.App.2d 457 [money borrowed by wife who had

been deserted by her husband constituted her separate property under former

section 169].) These facts illustrate the apparent purpose of the statute: to provide

for an estranged wife, whose husband was not physically living with her, a means

of maintaining herself in her separate place of residence by allowing her earnings

and accumulations to be her separate property.

Without questioning whether separate residences was a necessary predicate,

courts struggled to articulate a uniform standard for determining the date of

separation in circumstances where the parties had moved into separate homes.

The court in Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App.

138 (Makeig), for example, summarized the then-existing law and concluded that

―[l]iving separate and apart . . . , as contemplated by section 169, does not apply to

a case where a man and wife are residing temporarily in different places due to

economic or social reasons, but applies to a condition where the spouses have

come to a parting of the ways and have no present intention of resuming marital

relations and taking up life together under the same roof.‖ (Id., at p. 143, italics

added.) The court explained that ―[u]nder modern conditions there is many a man

living and working in one place and his wife living and working in another, seeing

one another only on week ends, sometimes not for months at a time, yet they are

not living separate and apart within the meaning of the section, for there has been

no marital rupture, and there is a present intention to live together as man and

wife, and their status is only temporary, although it may happen that the condition

might exist for some years.‖ (Id., at pp. 143-144; accord, Kerr v. Kerr (1960) 182

13

Cal.App.2d 12, 18 [evidence showed that there was no final parting of the ways or

intention not to resume marital relations under the same roof until such time as

wife refused to permit husband‘s return to their home].)

Subsequent legislative developments suggest no intent to change the

meaning of the phrase ―living separate and apart.‖ In 1969, the Legislature

repealed the family law portions of the Civil Code and replaced them with the

Family Law Act. (Stats. 1969, ch. 1608, §§ 3, 6, 8, pp. 3313-3314.) Relevant to

our discussion, former section 169 was repealed and Civil Code section 5118

(former section 5118) was adopted. (Stats. 1969, ch. 1608, § 8, p. 3340.) Like its

predecessor, former section 5118 provided that ―[t]he earnings and accumulations

of the wife . . . , while she is living separate from her husband, are the separate

property of the wife.‖ (Stats. 1969, ch. 1608, § 8, p. 3340.) As before, no

specialized definition of the language was provided, and by enacting language

identical to former section 169, the 1969 Legislature once again expressed its

intent to continue in effect the former law. (Civ. Code, § 5.) Therefore, as it did

originally, the statute continued to address the situation in which a wife was living

estranged in a separate residence from her husband.

We pause at this point to observe that by this time the Legislature had also

used the phrase ―living separate and apart‖ elsewhere in the Civil Code. Civil

Code former section 34.6 specified certain circumstances under which ―a minor 15

years of age or older who [was] living separate and apart‖ from his or her parents

or legal guardian, ―whether with or without the consent of a parent or guardian and

regardless of the duration of such separate residence,‖ could consent to his or her

own medical or dental care. (Civ. Code, former § 34.6, added by Stats. 1968,

ch. 371, § 1, p. 788, italics added.) Former section 34.6 was repealed in 1992

(Stats. 1992, ch. 163, § 2, p. 724), but its substance was restated in Family Code

section 6922, where it continues to use the phrase ―living separate and apart‖ to

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mean the minor occupies a separate residence. (Fam. Code, § 6922, subd. (a)(2);

see Family Code, 22 Cal. Law Revision Com. Rep. (1992) foll. § 6922, p. 545

[―Section 6922 restates former Civil Code § 34.6 without substantive change.‖].)

This statute further supports our view that the Legislature likely intends the

common meaning of the language when it uses this statutory phrase.

Returning to the predecessor statutes to section 771(a), we note that in

1971, the Legislature amended the Family Law Act to address an inequity that had

developed in the treatment of husbands and wives. (Assem. Com. on Jud.,

Analysis of Assem. Bill No. 1549 (1971 Reg. Sess.) May 10, 1971.) By this time,

under Civil Code former section 5119, the earnings and accumulations of either

spouse became the separate property of such spouse after rendition of a judgment

of legal separation. (Civ. Code, former § 5119, subd. (a), added by Stats. 1969,

ch. 1608, § 8, p. 3340.) In addition, the earnings and accumulations of a husband

became his separate property after rendition of an interlocutory judgment of

dissolution and while he was living separate and apart from his wife. (Civ. Code,

former § 5119, subd. (b), added by Stats. 1969, ch. 1608, § 8, pp. 3340-3341.) But

under former section 5118, the earnings and accumulations of a wife while she

was living separate from her husband were her separate property regardless of

whether an interlocutory judgment of dissolution had been rendered. (Former

§ 5118, added by Stats. 1969, ch. 1608, § 8, p. 3340.) In 1971, the Legislature

repealed subdivision (b) of former section 5119 and amended former section 5118

to provide equal treatment by specifying that ―[t]he earnings and accumulations of

a spouse . . . , while living separate and apart from the other spouse, are the

separate property of the spouse.‖ (Stats. 1971, ch. 1700, pp. 3639-3640, italics

added.) Nothing in the legislative history, however, indicates any intent to change

15

the original (and commonly understood) meaning of the phrase ―living separate

and apart.‖2 Rather, the focus was simply on equalizing the treatment of husbands

and wives. (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 588 [The

Legislature‘s purpose in amending the statute was likely to address its possible

constitutional infirmity as gender discrimination.].)

The post-1971 cases continued to refine the description of what was

necessary for application of former section 5118. But again, none of them

questioned that a threshold requirement was separate residences. In In re

Marriage of Baragry (1977) 73 Cal.App.3d 444 (Baragry), the appellate court

reversed a trial court‘s determination that the parties had separated on the date that

the husband moved out of the marital home. (Id., at p. 449.) The reviewing court

observed that the fact that husband and wife lived in separate residences was not

determinative of whether they were ―living separate and apart‖ for purposes of

former section 5118. The court stated: ―The question is whether the parties‘

conduct evidences a complete and final break in the marital relationship.‖

(Baragry, supra, at p. 448.) It found no such conduct in the case before it because

the husband maintained continuous and frequent contact with his family after

moving from the marital home. He continued to eat dinner at the home,

maintained his mailing and voter registration address at the home, sent his wife

2 The 1870 Act used the phrase ―living separate and apart from her husband.‖

(1870 Act, Stats. 1870, ch. 161, § 1, p. 226.) Former section 169 in 1872 and

former section 5118 in 1969 both used the phrase ―living separate from her

husband.‖ The 1971 amendment to former section 5118 restored the phrase

―living separate and apart.‖ (Stats. 1971, ch. 1700, § 1, p. 3640.) The difference

in wording has not been considered significant. (Bruch, The Legal Import of

Informal Marital Separations: A Survey of California Law and a Call for Change

(1977) 65 Cal. L.Rev. 1015, 1020, fn. 11, and cases cited therein.)

16

cards and gifts, took her to social occasions, had her do his laundry, and otherwise

maintained the appearance of being married. He never informed his wife that he

had no intention of reconciling. (Id., at pp. 447-448.)

Similarly, a reviewing court concluded the evidence supported a

determination that a husband and his wife were not ―living separate and apart‖

under former section 5118 even though the wife had moved out of the marital

home, in a case in which they continued their sexual relationship, sought marriage

counseling and made multiple efforts at reconciliation. (In re Marriage of

Marsden (1982) 130 Cal.App.3d 426, 432-435.)

In In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 (Umphrey),

another case in which the spouses were living in separate residences, the Court of

Appeal cautioned that in determining the date of separation for purposes of former

section 5118, courts are ―duty bound to consider all of the relevant evidence‖

regarding ― ‗whether the parties‘ conduct evidences a complete and final break in

the marital relationship.‘ ‖ (Umphrey, supra, at p. 657, quoting Baragry, supra,

73 Cal.App.3d at p. 448.) It concluded that the parties‘ stipulation to a separation

date after they physically moved apart was not conclusive. (Ibid.)

In 1989, the Legislature directed the Law Revision Commission to organize

disparate statutes into a Family Code. (Family Code, 22 Cal. Law Revision Com.

Rep., supra, p. 7.) In 1992, the Legislature enacted the Family Code, operative

January 1, 1994. In pertinent part, the language of former section 5118 was placed

into Family Code section 771. (Stats. 1992, ch. 162, § 10, p. 489.) The Law

Revision Commission comment to section 771 states that ―[s]ection 771 continues

. . . Civil Code [former] [s]ection 5118 without change.‖ (Family Code, 22 Cal.

17

Law Revision Com. Rep., supra, com. foll. § 771, p. 137; see also Cal. Law

Revision Com. com., 29C West‘s Ann. Fam. Code (2004 ed.) foll. § 771, p. 405.)3

In 1994, the issue of the proper construction of the phrase ―living separate

and apart‖ was again before the court in In re Marriage of von der Nuell (1994) 23

Cal.App.4th 730 (von der Nuell). The von der Nuell court concluded that the trial

court erred in holding the date of separation of the parties was the date the

husband moved out of the family residence even if the parties had, at that time, no

intent to resume marital relations. (Id., at p. 732.) The court held that ―legal

separation requires not only a parting of the ways with no present intention of

resuming marital relations, but also, more importantly, conduct evidencing a

complete and final break in the marital relationship.‖ (Id., at p. 736, italics

changed.) By requiring both subjective intent and demonstrated conduct, the von

der Nuell court essentially combined the requirements of Makeig, supra, 112

Cal.App. at p. 143 and Baragry, supra, 73 Cal.App.3d at p. 448. (In re Marriage

of Hardin (1995) 38 Cal.App.4th 448, 451 (Hardin) [making this observation].)

Pointing to evidence of the parties‘ attempts to reconcile, the von der Nuell court

found that it was not until some years after the couple separated physically that

their conduct evidenced the complete and final break in their marital relationship

that was necessary to constitute ―living separate and apart.‖ (von der Nuell, supra,

at pp. 732, 734-737.)

In Hardin, supra, 38 Cal.App.4th 448, the Court of Appeal likewise

reversed a trial court‘s finding that the parties had separated on the date that

husband moved out of their residence. Like the court in von der Nuell, the Hardin

3 In 1999, the language of section 771 was designated section 771(a) without

change. (Stats. 1999, ch. 940, § 1, p. 6859.)

18

court concluded that both subjective intent to end the marriage and objective

conduct demonstrating such intent is necessary for legal separation. (38

Cal.App.4th at p. 451.) ―Simply stated, the date of separation occurs when either

of the parties does not intend to resume the marriage and his or her actions

bespeak the finality of the marital relationship. There must be problems that have

so impaired the marriage relationship that the legitimate objects of matrimony

have been destroyed and there is no reasonable possibility of eliminating,

correcting or resolving these problems.‖ (Ibid.) The court declared that ―[a]ll

factors bearing on either party‘s intentions ‗to return or not to return to the other

spouse‘ are to be considered,‖ but ―[n]o particular facts are per se determinative.‖

(Id., at p. 452.) ―The ultimate question to be decided in determining the date of

separation is whether either or both of the parties perceived the rift in their

relationship as final. The best evidence of this is their words and actions. The

husband‘s and the wife‘s subjective intents are to be objectively determined from

all of the evidence reflecting the parties‘ words and actions during the disputed

time in order to ascertain when during that period the rift in the parties‘

relationship was final.‖ (Id., at p. 453.)4

4 The reviewing court in Manfer, supra, 144 Cal.App.4th 925, found

Hardin‘s articulation of the standard for determining the date of separation to be

the most helpful. In Manfer, the husband moved out of the marital home and wife

decided that their stormy marriage was finally over, but the parties agreed to hide

their circumstances from family and friends until after the year-end holidays. The

Court of Appeal held that the trial court ―erroneously applied an ‗outsider‘s

viewpoint‘ standard to defer the date of separation to [a date] after the parties had

revealed to the world their hitherto secret that the marriage was over.‖ (Id., at

p. 927.) The Manfer court stated that ―[t]he date-of-separation test does not ask

what the public thinks, but whether at least one of the parties intended to end the

marriage and whether there was objective conduct ‗bespeak[ing] the finality of the

marital relationship.‘ ‖ (Id., at p. 928.) Once again, as in all the other cases

discussed previously, the facts in Manfer involved the separation of residences.

19

In our view, the language in these cases — requiring consideration of ―all

of the relevant evidence‖ regarding ― ‗whether the parties‘ conduct evidences a

complete and final break in the marital relationship‘ ‖ (Umphrey, supra, 218

Cal.App.3d at p. 657, quoting Baragry, supra, 73 Cal.App.3d at p. 448), requiring

both a lack of ―present intention of resuming marital relations . . . [and] conduct

evidencing a complete and final break in the marital relationship‖ (von der Nuell,

supra, 23 Cal.App.4th at p. 736, italics omitted), and indicating that ―[a]ll factors

. . . are to be considered‖ in deciding the ―ultimate question‖ of ―whether either or

both of the parties perceived the rift in their relationship as final‖ (Hardin, supra,

38 Cal.App.4th at pp. 452, 453, italics omitted) — must be understood in the

context of their facts, which reflect that in each case the parties had moved into

separate places of residence. These cases do not address, and therefore are not

authority for a conclusion that ―living separate and apart‖ was intended by the

Legislature, originally or subsequently, to require, as wife argues, only

demonstrated conduct reflecting a subjective intent to part ways with no plan of

resuming the marital relationship, which might, but need not necessarily, include

physical separation. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [― ‗It

is axiomatic that cases are not authority for propositions not considered.‘ ‖].)

They are consistent with a view that both separate residences and demonstrated

intent are necessary.

Moreover, as far as can be determined from the decisions, none of the cases

that have construed section 771(a) and its predecessors have traced the statutory

language back to the original, uncodified, 1870 Act. In our view, consideration of

the 1870 Act and its historical background helps to determine the Legislature‘s

intent in using the phrase ―living separate and apart.‖ It provides support for a

common meaning interpretation of the language, as well as context for what

20

followed. It is true that a number of cases have noted the lack of a specific

statutory definition and have expressed a view that there is a similar lack of

legislative history regarding how to determine the date of separation, i.e., the date

on which the parties began living separate and apart. (Manfer, supra, 144

Cal.App.4th at p. 929 [observing that ―the statute does not define ‗date of

separation‘ or specify a rule for determining it‖]; Norviel, supra, 102 Cal.App.4th

at p. 1158 [same]; Hardin, supra, 38 Cal.App.4th at pp. 450-451 [same]; Baragry,

supra, 73 Cal.App.3d at p. 448 [referring to ―what little law defines separation‖].)

But to the extent these comments suggest that there is a lack of discernable

legislative intent with respect to the underlying requirement of separate residences,

we disagree. When the 1870 Act is viewed as part of section 771(a)‘s statutory

history and in context, there emerges an apparent legislative intent and purpose

substantiating the ordinary linguistic understanding of the phrase ―living separate

and apart.‖

The issue of whether spouses must be residing in separate places in order to

support a finding that they are ―living separate and apart‖ under the statute was

finally expressly considered in Norviel, supra, 102 Cal.App.4th 1152. Citing

many of the cases that we have reviewed, the majority in Norviel recognized that

―[d]ecisional law . . . clearly establishes that parties may live apart and yet not be

separated.‖ (Id., at p. 1162.) It concluded, however, that the reverse is not also

true. The Norviel majority held that ―living apart physically is an indispensable

threshold requirement to separation, whether or not it is sufficient, by itself, to

establish separation.‖ (Ibid.) The court found support for that conclusion in the

statutory language, in the early decisions of this state, and in decisions from

21

several other jurisdictions. (Id., at pp. 1162-1163.)5 The Norviel majority

acknowledged that its ―conclusion [did] not necessarily rule out the possibility of

some spouses living apart physically while still occupying the same dwelling[,]‖

but found that ―this [was] not such a case.‖ (Id., at p. 1164.)

The dissent in Norviel found that substantial evidence supported the trial

court‘s finding of a date of separation that was prior to husband moving out of the

marital home because husband had clearly communicated his intent to end the

marriage and the parties‘ conduct thereafter was consistent with that intent.

(Norviel, supra, 102 Cal.App.4th at pp. 1165-1167 (dis. opn. of Bamattre-

Manoukian, J.).) According to the dissent, the majority‘s rule was unworkable,

largely because it did not allow a couple who has reached the decision to end their

marriage ―a transition period to take the necessary steps to untangle the financial,

legal and social ties incident to their decision.‖ (Id., at p. 1166.) Without

recognizing that the facts in Hardin, supra, 38 Cal.App.4th 448, reflected a

separation of residences, the dissent stated that it would apply the test articulated

by the Hardin court, which required consideration and evaluation of all of the

5 The Norviel majority noted In re Marriage of Johnson (1982) 134

Cal.App.3d 148, was the only case husband proffered as authority for his position

that parties may live together and still be considered separated. (Norviel, supra,

102 Cal.App.4th at p. 1162.) In Johnson, supra, at page 155, husband contested

the trial court‘s finding of the date of separation, but the reviewing court

concluded, in a single paragraph with little discussion, that the trial court‘s

determination was based upon substantial evidence. The Norviel majority was not

convinced that Johnson was contrary to the conclusion that it reached, given

Johnson‘s sparse recitation of the relevant facts. (Norviel, supra, at p. 1162.) We

agree. But to the extent that it can be argued that the Johnson court determined

that living separate lives was sufficient for purposes of former section 5118

(Johnson, supra, at p. 155), it is contrary to the evidence of legislative intent that

we have discussed.

22

evidence regarding ― ‗the parties‘ words and actions during the disputed time in

order to ascertain when during that period the rift in the parties‘ relationship was

final.‘ ‖ (Norviel, supra, 102 Cal.App.4th at p. 1168.)6

There appears to have been no reaction from the bench or bar subsequent to

the Norviel decision contending that the Norviel majority had introduced a sudden

new rule that was legislatively unintended and unworkable. No movement to

promote the position of the Norviel dissent seems to have materialized. And,

although we recognize that legislative inaction after a judicial decision does not

necessarily imply legislative approval (County of Los Angeles v. Workers’ Comp.

Appeals Bd. (1981) 30 Cal.3d 391, 404), it is also interesting to observe that the

Legislature has had more than a decade to amend section 771(a) in response to the

Norviel majority‘s recognition of a threshold requirement of physically separate

places of residence and has failed to do so.

From this survey of the history of section 771(a) and its predecessor

statutes, as judicially construed, we are convinced that the Legislature intended the

statutory phrase ―living separate and apart‖ to require both separate residences and

accompanying demonstrated intent to end the marital relationship. Consistent

with the statute‘s history and the developed standard articulated by the case law,

we hold that ―living separate and apart‖ refers to a situation in which spouses are

living in separate residences and at least one of them has the subjective intent to

end the marital relationship, which intent is objectively evidenced by words or

6 The Court of Appeal in the present case found the dissenting opinion in

Norviel to be compelling and wife reiterates the position here.

23

conduct reflecting that there is a complete and final break in the marriage

relationship.7

3. Public Policy Considerations

Wife contends that a bright-line rule, such as we articulate, will be overly

simplistic, will lead to unjust, harsh results, and is, essentially, against current

public policy considerations. She suggests that ―[a] typical spouse in California,

for example, may face further financial difficulties simply by being required to

move out of the marital residence as a prerequisite to establishing the date of

separation rather than intentionally and meaningfully living as roommates at the

same residence, while taking the necessary steps to untangle any outstanding

financial, legal and social ties incident to that spouse‘s decision to terminate the

marriage.‖ She points out that there may be spouses who need to reside in the

same residence as ―roommates‖ because of foreclosure, job loss, or other

economic factors. She suggests that others may wish to share the same residence

in order to coparent their children. Finally, she speculates concerning the

difficulty a spouse may encounter in obtaining a move-away order.

Wife‘s arguments are not without weight. However, it bears repeating that

the issue before us is a question of interpretation of a community property statute.

Our goal in construing statutory language is to give effect to the Legislature‘s

intent and purpose. (Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at p. 1119.)

Here we find original legislative intent to use the language in its common and

7 Under the facts presented by this case, we have no occasion to consider,

and expressly reserve the question, whether there could be circumstances that

would support a finding that the spouses were ―living separate and apart,‖ i.e., that

they had established separate residences with the requisite objectively evidenced

intent, even though they continued to literally share one roof.

24

ordinary sense as requiring separate places of residence before the earnings and

accumulations of a wife during marriage could be characterized as the wife‘s

separate property. We understand the original legislative purpose of the statute to

be the protection of and provision for a wife who was estranged and living

physically separate from her husband. Thus, the statutory phrase ―living separate

and apart‖ required that the spouses be living in separate residences. We find no

evidence of any subsequent change in the legislative intent to apply the commonly

understood meaning of that language or change of legislative purpose in protecting

a vulnerable spouse, which alter the meaning of this statutory phrase. Admittedly,

the statute, as so construed, may work hardship in some specific situations, but we

cannot say it is absurd. (People v. Leiva (2013) 56 Cal.4th 498, 506 [a literal

construction may be rejected where it would result in absurd consequences the

Legislature could not have intended].) Very much to the contrary; a bright-line

rule, as husband points out, promotes fairness by providing a measure of

predictability to the parties and their attorneys, as well as clear guidance to judges.

It reduces the potential for manipulation of a more elastic standard by the higher

earner in situations of significant disparity of spousal income. It provides separate

property classification of earnings and accumulations where the need is greatest

because each spouse is maintaining his or her own separate place of residence. It

retains the presumption of community property for earnings and accumulations

acquired during marriage during a period of time likely to be prior to the

institution of court proceedings and any court order of support, thereby protecting

the lower earning spouse.

The requirement of separate residences for purposes of section 771(a)

promotes reasonable public policy interests, but if there are other policy concerns

that now advise the adoption of a different rule, it is up to the Legislature to craft

25

one. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1015; Cel-Tech

Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th

163, 174.)

C. Conclusion

We conclude that living in separate residences ―is an indispensable

threshold requirement‖ (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding

that spouses are ―living separate and apart‖ for purposes of section 771(a). This

interpretation of the statutory language aligns with the common understanding of

the words, the statutory history of the provision, and legitimate public policy

concerns. Because the Court of Appeal rejected such a requirement as a matter of

statutory construction, it erred as a matter of law.

III. DISPOSITION

The judgment of the Court of Appeal is reversed and the matter is

remanded for proceedings consistent with our opinion.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

26

CONCURRING OPINION BY LIU, J.

I agree with today‘s opinion that the phrase ―living separate and apart‖ in

Family Code section 771, subdivision (a) (hereafter section 771(a)) ―refers to a

situation in which spouses are living in separate residences and at least one of

them has the subjective intent to end the marital relationship, which intent is

objectively evidenced by words or conduct reflecting that there is a complete and

final break in the marriage relationship.‖ (Maj. opn., ante, at pp. 23–24.) I also

agree that it remains open ―whether there could be circumstances that would

support a finding that the spouses were ‗living separate and apart,‘ i.e., that they

had established separate residences with the requisite objectively evidenced intent,

even though they continued to literally share one roof.‖ (Id. at p. 24, fn. 7.) I

write separately to note that in addressing that question, courts should understand

the purpose of section 771(a) in light of relevant changes in historical context that

have occurred since 1870 when the Legislature enacted the original version of the

statute.

The phrase ―living separate and apart‖ first appeared in an uncodified 1870

statute titled ―An Act to protect the rights of married women in certain cases.‖

(Stats. 1870, ch. 161, p. 226 (hereafter the 1870 Act).) This statute provided that

―[t]he earnings and accumulations of the wife . . . , while the wife is living

separate and apart from her husband, shall be the separate property of the wife.‖

(Id., § 2, p. 226.) The 1870 Act further provided that a wife ―living separate and

1

apart from her husband‖ had ―sole and exclusive control [over] her separate

property,‖ could ―sue and be sued‖ without joinder of her husband, and could

―avail herself of and be subject to all legal process in all actions, including actions

concerning her real estate.‖ (Id., § 3, p. 226.)

Although the 1870 Act included no definition of ―living separate and

apart,‖ the Legislature clearly contemplated separate addresses for the husband

and wife. As the court explains, ―[s]ection 4 of the 1870 Act provided a procedure

for a wife who was ‗living separate and apart‘ from her husband to sell her real

property without joining with her husband. To do so, the wife was required to

record a verified and acknowledged declaration ‗containing a description of such

real estate, the name of her husband, her own place of residence, and [stating] that

she is a married woman, living separate and apart from her husband.‘ (1870 Act,

Stats. 1870, ch. 161, § 4, p. 226, italics added.) The statutory requirement that the

wife state in a declaration ‗her own‘ place of residence that is ‗separate and apart

from her husband‘ strongly suggests that the 1870 Act was directed at a situation

where the spouses had physically separated and the wife in fact had ‗her own‘

residence.‖ (Maj. opn., ante, at pp. 8–9.)

Today‘s opinion accurately describes the context and purpose of the 1870

Act. At the time, ―married women had very limited power over their property. In

the absence of a binding premarital agreement, the husband had the absolute right

of ‗management and control‘ of the community property of the marriage,

including the power of sale of assets,‖ as well as considerable power over the

wife‘s separate property. (Maj. opn., ante, at pp. 9–10.) ―Under the statutory

scheme in effect in 1870, until entry of a decree of dissolution of the marriage . . . ,

it appears that a woman who was either involved in divorce proceedings or whose

husband had deserted or otherwise left her, and who did not have separate property

coming within one of the statutory provisions giving her control over it, would

2

have no right of access to the financial sustenance needed to meet the expenses of

daily life on her own.‖ (Id. at p. 10.)

―When read as a whole and in this context, it seems evident that the 1870

Act was intended to afford married women some additional protection from the

rigors of the law generally denying them control over their earnings and separate

property. Under the authority of the 1870 Act, a wife whose husband was not

physically living with her could undertake to support herself in her ‗own‘

residence. Unlike other married women, she could retain her earnings and

accumulations as her separate property to maintain her separate residence. She

was given the right to control and dispose of her separate property. . . . [T]he 1870

Act should be understood as a limited exception to the general rule of that time

that the husband had full management and control over the marital and separate

assets for the duration of the marriage. It appears the Legislature was concerned

only with the special and limited circumstance of a wife who was living physically

separate from her husband. Such a wife was likely to be incurring separate

expenses associated with her separate residence and could be anticipated to need

the authority to separately maintain, control and manage such property. In such a

situation, the 1870 Legislature determined an exception to the normal community

property characterization of earnings and accumulations acquired during marriage

and husband‘s control was appropriate.‖ (Maj. opn., ante, at p. 11.)

The 1870 Act may be understood as a legislative response to cases like

Lawrence v. Spear (1861) 17 Cal. 421. There a wife deserted by her husband

engaged in a furniture business and sold furniture to the defendant. The husband

sued the defendant to void the sale on the ground that he never consented to it.

The court upheld the sale based on the legal fiction that the husband, having

abandoned the wife, impliedly consented to her disposition of property for her

own support. (Id. at pp. 423–424.) This fiction was necessary because the wife

3

had no control over community property and no way to accumulate or control her

own separate property, even though she was living separate and apart from her

husband. Moreover, divorce did not appear to be a widely accessible option. (See

Stevenson & Wolfers, Marriage and Divorce: Changes and their Driving Forces

(Spring 2007) 21 J. Econ. Persp. 27, 29, fig. 1 (Stevenson & Wolfers) [showing

very low rate of divorce in the United States between 1860 and 1900].) The 1870

Act provided a narrow exception to the male-dominated property regime in order

to protect a wife in such circumstances.

In 1971, the Legislature amended former Civil Code section 5118, the

immediate predecessor to section 771(a), to make the statute gender-neutral. The

amended statute said: ―The earnings and accumulations of a spouse . . . , while

living separate and apart from the other spouse, are the separate property of the

spouse.‖ (Stats. 1971, ch. 1700, pp. 3639–3640.) As the court notes, this

amendment remedied ―an inequity that had developed in the treatment of husbands

and wives,‖ whereby a wife living separate and apart from her husband could

accumulate separate property before formal dissolution of the marriage, yet the

husband could only accumulate separate property after obtaining an interlocutory

judgment of dissolution. (Maj. opn., ante, at p. 15.)

Beyond addressing this specific concern, however, it is evident from

context that the amended statute served a different purpose than the original 1870

Act. By 1971, the Legislature had long enacted reforms that gave married women

control of their own earnings even though such earnings remained community

property (Stats. 1951, ch. 1102, pp. 2860–2861), and by 1975, the Legislature had

abandoned the male-controlled community property regime in favor of giving both

spouses equal control (Stats. 1973, ch. 987, pp. 1897–1905; Stats. 1974, ch. 11,

pp. 3590–3591). (See Prager, The Persistence of Separate Property Concepts in

California‘s Community Property System, 1849–1975 (1976) 24 UCLA L.Rev. 1,

4

65–67, 73–74 & fn. 350.) Moreover, divorce had become more common by 1971

(Stevenson & Wolfers, supra, 21 J. Econ. Persp. at p. 29, fig. 1), and two years

earlier, California had become the first state in the nation to adopt a no-fault

divorce law (Family Law Act, 1969 Stat., ch. 1608, § 8). These reforms occurred

in the context of other legal developments promoting gender equality. (See Sail’er

Inn, Inc. v. Kirby (1971) 5 Cal.3d 1; Reed v. Reed (1971) 404 U.S. 71.)

Thus, by 1971, an estranged wife living separate and apart from her

husband had no need for a special statutory dispensation to earn and control

separate property in order to provide for her own sustenance. She already

controlled the portion of the community comprised of her own earnings, and she

was soon to have equal control of all community property. Thus, the gender-

neutral version of the statute enacted in 1971 no longer served the same protective

purpose of the gender-specific 1870 Act. The modern statute is best understood to

have a different purpose: Instead of addressing a nonexistent need to free one

spouse from the other‘s exclusive control of community property, the statute —

consistent with contemporary norms of gender equality — evenhandedly

recognizes the separateness of each spouse‘s earnings and accumulations in

situations where the spouses have effectively though not formally ended their

marriage. In short, the statute recognizes a separation before divorce that

effectively ends the community.

Today‘s opinion ascribes to the Legislature a continuing purpose of

―protecting a vulnerable spouse‖ in construing the phrase ―living separate and

apart‖ to have the same meaning today as it did in 1870. (Maj. opn., ante, at

p. 25.) But whereas a narrow construction of the phrase now ―protect[s] the lower

earning spouse‖ by ―reduc[ing] the potential for manipulation of a more elastic

standard by the higher earner‖ (ibid.), a narrow construction served no similar

protective purpose in 1870. To the contrary, the Legislature in 1870 understood

5

―living separate and apart‖ narrowly to mean separate addresses because it sought

to create ―a limited exception to the general rule of that time that the husband had

full management and control over the marital and separate assets for the duration

of the marriage.‖ (Id. at p. 11, italics added.) A broader understanding of ―living

separate and apart‖ — one that enabled an estranged wife to earn and control

separate property without living at a separate address from her husband — would

have been more protective of the vulnerable spouse in 1870. Yet it also would

have meant greater property rights for married women at the expense of the male-

controlled property regime, and there is no indication that the Legislature in 1870

had any interest in fundamentally changing that regime. The 1870 statute was

protective because it created an exception to the male-dominated property regime,

not because the exception it created was a narrow one.

By 1971, the Legislature had revised the archaic laws granting husbands

exclusive control of marital assets, and the original motivation for construing

―living separate and apart‖ narrowly had become obsolete. Now the gender-

neutral statute, premised on the legal equality of husband and wife, simply

recognizes the separateness of each spouse‘s earnings and accumulations at the

point when the spouses have effectively but not formally ended the marriage, i.e.,

when the spouses are ―living separate and apart.‖ Construing this phrase as it

appears in the modern statute, I agree that its most natural meaning (maj. opn.,

ante, at pp. 6–7) as well as practical considerations of clarity and

administrability (id. at p. 25) suggest that whether spouses are ―living separate and

apart‖ turns not solely on the subjective intent of at least one spouse, but also on

an objective manifestation of that intent by some form of physical separation.

However, countervailing considerations of family economics and parenting (id. at

p. 24) suggest that the physical separation need not assume the precise form that

the Legislature in 1870 envisioned, namely, separate addresses.

6

In considering whether spouses living under the same roof are ―living

separate and apart‖ for purposes of section 771(a), we are not bound by the 1870

Legislature‘s narrow understanding of that term. Rather, in light of the current

purpose of section 771(a), the question is whether the spouses, in addition to their

intent to separate, have demonstrated ―unambiguous, objectively ascertainable

conduct amounting to a physical separation under the same roof.‖ (In re Marriage

of Norviel (2002) 102 Cal.App.4th 1152, 1164.) In order to qualify as ―living

separate and apart,‖ the spouses must have a living arrangement that clearly and

objectively signals a complete and final termination of the marital relationship.

Neither the Legislature nor this court has foreclosed the possibility that such a

living arrangement may occur within a single dwelling.

LIU, J.

I CONCUR:

WERDEGAR, J.

7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Marriage of Davis

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 220 Cal.App.4th 1109

Rehearing Granted

__________________________________________________________________________________

Opinion No. S215050

Date Filed: July 20, 2015

__________________________________________________________________________________

Court: Superior

County: Alameda

Judge: Elizabeth Hendrickson, Commissioner

__________________________________________________________________________________

Counsel:

Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Appellant.

Ferguson Case Orr Paterson, Wendy C. Lascher; Ivie, McNeill & Wyatt and Lilia E. Duchrow for

Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephanie J. Finelli

Law Office of Stephanie J. Finelli

3110 S Street

Sacramento, CA 95816

(916) 443-2144

Lilia E. Duchrow

Ivie, McNeill & Wyatt

444 South Flower Street, Suite 1800

Los Angeles, CA 90071

(213) 489-0028

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